Rumpf v. Prog Leasing LLC

United States District Court, D. Arizona

May 31, 2017

Jay Rumpf, Plaintiff,v.Prog Leasing LLC, et al., Defendants.

ORDER

Honorable G. Murray Snow Judge

Pending
before the Court is the Motion to Compel Arbitration, (Doc.
13), of Defendant Prog Leasing LLC (“Prog
Leasing”). Also pending before the Court is Plaintiff
Jay Rumpf's (“Rumpf”) Motion for Leave to
File a Sur-Reply, (Doc. 28). For the following reasons, the
Court grants Defendant's motion and denies
Plaintiff's motion.

BACKGROUND

Rumpf
filed suit in this Court on January 13, 2017, alleging that
Prog Leasing violated his rights under the Telephone Consumer
Protection Act (“TCPA”). (Doc. 1 at 2.) TCPA
prohibits, among other things, the making of telephone calls
using “any automatic telephone dialing system or an
artificial or prerecorded voice” to “any
telephone number assigned to a . . . cellular telephone
service” and the initiation of “any telephone
call to any residential telephone line using an artificial or
prerecorded voice to deliver a message without the prior
express consent of the called party.” 47 U.S.C. §
227(b)(1).

The
Complaint alleges that “[i]n the last four years,
Defendant placed calls to Plaintiff's cellular telephone
number.” (Doc. 1 at 3.) Some of these calls involved
prerecorded messages, and others involved a live
representative. (Doc. 1 at 3.) The Complaint further alleges
that “Plaintiff does not have business with Defendant
and never provided Defendant his cellular telephone number or
prior express consent to call or autodial it.” (Doc. 1
at 3.)

Prog
Leasing responded with the instant Motion. In support of the
Motion, Prog Leasing presents a declaration from Trevor
Thatcher, the Vice-President of Operations for Prog Leasing,
and a lease (the “Lease”). (Doc. 14.) From these
come the following relevant facts: Rumpf's wife, Treva
Vasquez, entered into a Lease for a queen bed set with Prog
Leasing in January 2016. (Doc. 14 at 5, 8.) This Lease
contained an arbitration provision, which stated in relevant
part that “you and we agree that either party may elect
to arbitrate or require arbitration of any Claim under this
Arbitration Provision.” (Doc. 14 at 5, 9-10.) And
finally, Rumpf had called Prog Leasing to discuss the Lease
in June 2016. (Doc. 14 at 6.) Prog Leasing asserts that Rumpf
is bound by the arbitration provision as a direct beneficiary
of the Lease, and that the arbitration provision covers the
dispute under the TCPA.

Further
briefing on the Motion by each party elicited more evidence.
Rumpf presents an affidavit in which he admits that he is
married to Vasquez and was married to her when she entered
into the Lease, although he asserts that he had no knowledge
of the Lease at the time. (Doc. 24-1 at 2.) He also concedes
that he used the leased bed “[b]eginning in late
January 2016 through approximately April of 2016.”
(Doc. 24-1 at 2.) He admits calling Prog Leasing in June
2016, but states that at that point he was not aware that his
wife had entered into the Lease and only became aware of this
during the call. (Doc. 24-1 at 2.) He states that he only
called Prog Leasing to inquire about purchasing a bed for his
child and that he never “sought any benefit under the
Lease, agreed to be a party to the Lease, sought to enforce
any of its terms or otherwise [had] any involvement with the
Lease.” (Doc. 24-1 at 2.)

In
turn, Prog Leasing attached to their reply, (Doc. 27), a
second declaration by Trevor Thatcher in which Thatcher
testifies to his knowledge of the contents of the June 2016
phone conversation. (Doc. 27-1 at 1-4.) Attached to this
declaration as an exhibit is a transcript of the June 2016
phone conversation. (Doc. 27-1 at 17-19.) This transcript
indicates that Rumpf told Prog Leasing, among other things,
that “[w]e already have a Queen size that we have been
paying on” and that the payments had been made from a
joint bank account. (Doc. 27-1 at 18-19.)

“Notwithstanding
the federal policy favoring it, ‘arbitration is a
matter of contract and a party cannot be required to submit
to arbitration any dispute which he has not agreed so to
submit.'” Tracer Research Corp., 42 F.3d
at 1294 (quoting United Steelworkers of Am. v. Warrior
& Gulf Navigation Co., 363 U.S. 574, 582 (1960));
see French v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 784 F.2d 902, 908 (9th Cir. 1986). Where the
arbitrability of a dispute is in question, a court must look
to the terms of the contract. See Chiron Corp., 207
F.3d at 1130. “‘Any doubts concerning the scope
of arbitrable issues should be resolved in favor of
arbitration.'” Simula, 175 F.3d at 719
(quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 20 (1983)); see French, 784
F.2d at 908.

However,
a court “cannot expand the parties' agreement to
arbitrate in order to achieve greater efficiency [and] the
[FAA] ‘requires piecemeal resolution when necessary to
give effect to an arbitration agreement.'”
Tracer Research Corp., 42 F.3d at 1294 (quoting
Moses H. Cone Mem'l Hosp., 460 U.S. at 24-25)
(emphasis in original). “[T]he judicial inquiry . . .
must be strictly confined to the question whether the
reluctant party did agree to arbitrate[.]” United
Steelworkers, 363 U.S. at 582. “The court's
role under the [FAA] is therefore limited to determining (1)
whether a valid agreement to arbitrate exists and, if it
does, (2) whether the agreement encompasses the dispute at
issue.” Chiron Corp., 207 F.3d at 1130 (citing
Simula, 175 F.3d at 719-20; Republic of
Nicaragua v. Standard Fruit Co., 937 F.2d 469, 477-78
(9th Cir. 1991)); see Simula, 175 F.3d at 720
(stating that “the district court can determine only
whether a written arbitration agreement exists, and if it
does, enforce it in accordance with its terms”) (citing
Howard Elec. & Mech. v. Briscoe Co., 754 F.2d
847, 849 (9th Cir. 1985)).

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.